FAMILY COURT OF AUSTRALIA
| IPHOSTROU & IPHOSTROU AND ORS (NO 4) | [2011] FamCA 220 |
| FAMILY LAW - COURTS AND JUDGES – Bias – Disqualification – Where the applicants requested that the primary judge recuse himself on the ground of apprehended bias in the form of prejudgment – Where prior to the application separate applicants had brought an application for disqualification – Whether the primary judge should recuse himself due to apprehended bias |
| Family Law Act 1975 (Cth), ss 79, 80, 106B |
| APPLICANT WIFE: | Ms E Iphostrou |
| 1ST RESPONDENT HUSBAND: | Mr S Iphostrou |
| 2ND RESPONDENT: | Mr P Iphostrou |
| 3RD RESPONDENT: | Mr J Iphostrou |
| 4TH RESPONDENT: | Mr V |
| 8TH RESPONDENT: | J Pty Ltd |
| 12TH RESPONDENT: | P Pty Ltd |
| REMAINING RESPONDENTS: | Corporate entities (Referred to in annexure attached) |
| FILE NUMBER: | MLC | 8731 | of | 2009 |
| DATE DELIVERED: | 31 March 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 7 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT WIFE: | Mr Burnside QC with Mr Edmunds |
SOLICITOR FOR THE APPLICANT WIFE: | Hallett West |
| COUNSEL FOR THE 1ST RESPONDENT HUSBAND: | Mr North QC |
| SOLICITOR FOR THE 1ST RESPONDENT HUSBAND: | Belleli King & Associates |
| COUNSEL FOR THE 2ND, 3RD AND 12TH RESPONDENTS: | MS Loughnan SC with Mr Watts |
| SOLICITOR FOR THE 2ND, 3RD AND 12TH RESPONDENTS: | Altus Lawyers |
| COUNSEL FOR THE 4TH AND 8TH RESPONDENTS: | Mr Geddes QC with Mr Barbayannis |
| SOLICITOR FOR THE 4TH AND 8TH RESPONDENTS: | Voitin Lawyers |
| COUNSEL FOR THE REMAINING RESPONDENTS (CORPORATE ENTIES) Referred to in Annexure to these reasons: | Mr Denton SC with Ms Djohan |
| SOLICITOR FOR THE REMAINING RESPONDENTS (CORPORATE ENTIES) Referred to in Annexure to these reasons: | Natalie Rompotis |
Orders
That the application in a case filed on 7 March 2011 by Mr P Iphostrou, Mr J Iphostrou and P…
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- AGLC
- Iphostrou and Iphostrou & Ors (No 4) [2011] FamCA 220
- Case
- [2011] FamCA 220
- Decision Date
CaseChat Overview and Summary
The central legal issue before Cronin J was whether the primary judge ought to recuse himself from hearing the matter due to apprehended bias. This required the court to consider the test for apprehended bias in the context of a judicial officer's prior conduct and statements.
Cronin J applied the established test for apprehended bias, which requires determining whether a fair-minded lay observer, knowing the facts, would apprehend that the judge might not bring an impartial mind to the issues the judge is to decide. The judge considered the history of the proceedings and the nature of the applicants' allegations. Ultimately, the judge found that the apprehended bias alleged by the applicants was not made out.
Consequently, the application for the judge's recusal was dismissed. The court then fixed the date for the final hearing of the wife's application, which was to commence on 14 June 2011.
Orders
Orders of the court
1.
That the application in a case filed on 7 March 2011 by Mr P Iphostrou, Mr J Iphostrou and P Pty Ltd in its own capacity and as trustee for the Iphostrou Family Trust is dismissed.
2.
That the final hearing of the wife’s application (as amended) filed 25 November 2010 be fixed before me to commence on 14 June 2011 at 10 am.
AND IT IS NOTED THAT all outstanding interim issues are otherwise already listed for hearing at 10 am on 28 April 2010.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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